In Carman v. the CBE Group, Ltd., here, Judge Robinson found an absence of harassing intent under the FDCPA notwithstanding 149 phone call attempts in a two month period, 0-4 call attempts per day to the plaintiff’s home phone number and 0-3 call attempts per day to the plaintiff’s place of employment. Judge Robinson explained:
In this case, the Court finds there is no evidence of an unacceptable pattern of calls. The record is lacking of any indicia of the type of egregious conduct raising issues of triable fact when coupled with a high call volume. Although the number of calls in September and October appears somewhat high, they are unaccompanied by any other egregious conduct to evince an intent to annoy, abuse or harass. It is uncontroverted that CBE spoke to plaintiff only once, that she asked to call back at a later time, that plaintiff did not discuss her debt with CBE during that one phone call, and that CBE was unable to reach plaintiff at any other time. Plaintiff testified that she deliberately avoided answering any other calls from CBE. There is no evidence that CBE’s call attempts were made at odd or unreasonable hours. Unless a busy signal was received, no phone calls were made on the same day within two hours of each other. There is no evidence that the calls were made after plaintiff had spoken to one of CBE’s agents or had deliberately hung up on an agent. CBE did not leave any voice mail messages on plaintiff’s recording device and there is no evidence that CBE made deliberate “hang up” calls to plaintiff. Pugliese v. Prof. Recovery Serv., Inc., No. 09-12262, 2010 WL 2632562, at *9-10 (E.D. Mich. June 29, 2010). Because the Court finds that CBE did not violate 15 U.S.C. § 1692d(5)t, it does not reach the issue of whether it is entitled to a bona fide error defense under 15 U.S.C. § 1692k(c). Even if CBE violated § 1692d(5), however, it would be entitled to the defense as it has shown that the violation was : (1) unintentional, (2) a bona fide error, and (3) made despite the maintenance of procedures reasonably adapted to avoid the error. Johnson v. Riddle, 443 F.3d 723, 729 (10th Cir. 2006). In the one instance cited by plaintiff, where two calls were made approximately 25 minutes apart, the first call resulted in a busy signal. Any alleged violation of § 1692d(5) occurred despite CBE’s written policy, which states that collectors may attempt to contact a debtor more than once in the same day, as long as subsequent attempts are at least 120 minutes apart, and no calls can be made on the same day as any contact with a debtor after she answered the phone. There is no evidence plaintiff ever disputed the debt or requested that the calls to her cease. Although plaintiff testified as to her distress and annoyance as a result of CBE’s calls, her opinion regarding whether the calls were harassing is not evidence of CBE’s intent. Instead, the evidence suggests an intent by CBE to establish contact with plaintiff, rather than an intent to harass.